When lawyers of opponents to the genetically modified mosquito project filed an application for a stay and judicial review on July 13 – a review that could have ended the project – Justice Ingrid Mangatal suddenly had more than 598 pages worth of evidence and documents to review.
Complicating matters was the time-sensitive nature of the project, which had been scheduled to begin July 14. With a stay in place while the case was proceeding in court, three batches of genetically modified mosquitoes – approximately 150,000 of them – had to be destroyed.
On Monday, the judge delivered her ruling and explained the rationale for that decision the following day.
“In my judgment, the Applicant has failed to establish the grounds set out in the application and the relief sought by way of Judicial Review must be refused,” the judge wrote in the draft copy of her 23-page judgment.
After Justice Mangatal released the reasons for her judgment, counsel for the applicant asked for an additional stay in order to have time to appeal. The judge refused the stay, and the project – a collaboration between Cayman’s Mosquito Research and Control Unit and Oxitec – can now begin at any time.
“I understood the urgency of the application, since the application sought, amongst other relief, a stay of events and actions scheduled for the very next day,” Judge Mangatal wrote. “However, I also understood the weightiness and importance of the subject matter to the public bodies concerned, and indeed, to the public in general.
“It is because the planned operation appears to be extremely time sensitive in a number of ways, and allegedly involves the critical issues of public health and the environment, that I have taken the step of expediting the substantive hearing in such a heightened way,” she wrote.
The applicant, Dwene Ebanks, sought a judicial review of the May 18 decision of the Department of the Environment, acting on behalf of the National Conservation Council, to permit the import and release of up to 22 million genetically modified mosquitoes in West Bay. The project which aims to reduce the Aedes aegypti species that transmits dengue, chikungunya and Zika.
Mr. Ebanks, who spearheads a group called Caymanians United to Suspend GM Mosquitoes, started a petition to suspend the project two months ago.
The challenge was made on five grounds: that the respondents failed to carry out an independent risk assessment of the consequences of the proposed release; that there was a flawed reliance on an October 2009 risk assessment; that there was a failure to carry out a public consultation; that there was a “predisposition” to grant approval; and irrationality.
The purpose of the judicial review was not to determine the merits or demerits of the project, “no matter how controversial they may be,” the judge wrote.
“That is a matter for the appropriately qualified and mandated public bodies,” she said.
The judge wrote that she had to respect the National Conservation Council’s decision and “only interfere if solid grounds have been made out that there has been breach of the rights of a citizen, including fundamental human rights.”
“In my judgment, the Applicant has failed to establish the grounds set out in the application and the relief sought by way of Judicial Review must be refused,” the judge wrote.
She said the respondents’ evidence showed that the National Conservation Council and the Department of Environment considered the potential risks before granting approval, and found that there was not a failure to consult with the public before the council’s decision.
She noted that meetings took place in public and there was notification to the public via the media in advance of the National Conservation Council’s decision, that relevant information was available on the Department of Environment’s website, and that there was “quite intense public outreach carried out in West Bay.”
“It should be noted that although proper consultation is important, there must be a cut-off point as we do not live in an ideal world,” the judge wrote. “It is also the case, that at the end of the day, there is no telling whether everyone will agree on the course to be adopted.”
In response to an assertion by the applicant that the signing of a partnership agreement on the project prior to the submission of the MRCU’s application to the National Conservation Council raised concerns that the council’s “discretion may have been fettered,” the judge wrote that the applicant’s statement amounted to “no more than speculation.”
She also noted that the project was not the first time such a release would occur in Cayman. In 2009 and 2010, genetically modified mosquitoes were released during a trial project in East End.
“For the future, when planning to use any new technology, which, unlike the [genetically modified mosquitoes] has not already been introduced to the Islands, a non-binding survey … might well be considered to have some benefit and go a far way in enabling the public to feel a part of a process before implementation,” the justice advised in her written draft judgment.
The judge also advised that the Department of Environment and the National Conservation Council begin to develop the “criteria, procedures and subsidiary legislation” for determining whether the introduction of alien or genetically modified species might cause any harm to natural resources and for regulating and controlling such populations and introductions.
Mosquito Research and Control Unit Director Bill Petrie said the unit was “very pleased” with the judge’s decisions and “anxious to get on with the job.”
“I think we can all agree … that the work done by the court, by the justice was very, very impressive, the amount of material that was consumed and digested in a fairly short period of time on a fairly technical matter,” he said.
Applicant Mr. Ebanks said he thought his side had been able to present a “strong case.” He said the lawyers would review the matter to determine whether to proceed with an appeal and that either way, resistance to the project would continue in some form.
“We believe that the release of 22 million genetically modified mosquitoes in West Bay didn’t have the local population’s consent,” Mr. Ebanks said. “I’m sad that it went the way that it did, but hopefully those agencies will understand that they certainly have to pay much more importance to the public.”